The Overreach of Flavor Bans: Why Authority Doesn’t Equal Policy Wisdom

Last month in a unanimous ruling, the Supreme Court sided with the FDA v. Wages and White Lion Investments, and in so doing, it perpetuated a broken regulatory regime that causes more harm than it prevents.

The case centered on whether the FDA could deny authorization for flavored e-cigarette products without providing manufacturers adequate guidance on scientific evidence requirements. The Court upheld the FDA’s near-blanket rejection of flavored vaping products, endorsing the agency’s regulatory approach that treats flavors as inherently appealing to youth regardless of their benefits to adult smokers. This ruling effectively gives the FDA unchecked authority to remove these products from the legal market under the guise of protecting public health, despite mounting evidence of their harm reduction potential.

Prohibition doesn’t keep people from getting their hands on these products. All it does is drive the market for those products underground. Black markets lead to less transparency, compromised product safety, and criminalization of otherwise law-abiding citizens.

The Numbers

As Mark Twain once said, “There are three types of lies: lies, damned lies, and statistics.”

Regulators make much use of the latter when they repeatedly cite that nearly 6% of students use vaping products. That’s one way to put it. Another way to put it is that 94% don’t.

Youth vaping has been declining steadily in recent years, with the FDA’s own 2024 National Youth Tobacco Survey documenting a significant drop from 2.13 million youth e-cigarette users in 2023 to 1.63 million in 2024.

On top of that, cigarette smoking among youth has reached the lowest level ever recorded by the survey, at just 1.4%. If your goal is less youth smoking, then this is not the time to tinker with failed policy levers that could reverse decades of progress.

Meanwhile, the evidence supporting vaping’s effectiveness as a smoking cessation tool grows more compelling with each study. A landmark 2021 study found that daily e-cigarette usage among tobacco smokers can increase the likelihood of quitting smoking by eightfold compared to non-vapers. This is a finding that should give regulators pause before removing these options from adult smokers. King’s College London’s comprehensive review, the largest of its kind, concluded that vaping is “substantially less harmful than smoking,” representing a small fraction of the health risks of combustible cigarettes.

The Experts Drowned Out By Moral Panic

While anti-vaping activists have dominated the public conversation through emotional appeals and selective evidence, the scientific community offers a more nuanced view. In a publication in the American Journal of Public Health, fifteen former presidents of the Society for Research on Nicotine and Tobacco, the field’s premier scientific organization, called for a more balanced approach to vaping regulation that recognizes both youth protection and adult harm reduction needs.

These experts, whose careers have been dedicated to reducing tobacco-related harm, warned that single-minded focus on youth vaping risks undermining decades of progress in reducing smoking rates. They urged “the health community, media, and policymakers to more carefully weigh vaping’s potential to reduce adult smoking-attributable mortality”—a plea that has gone largely unheeded as regulatory momentum builds. This position aligns with assessments from international bodies like the Royal College of Physicians and Public Health England, which have concluded that e-cigarettes are significantly less harmful than traditional cigarettes.

The Black Market: Prohibition’s Demon Child

Just as Prohibition gave birth to speakeasies and bootlegging operations, the unintended consequences of flavor bans are already manifesting in a burgeoning vaping black market. Despite the FDA’s efforts to remove flavored vaping products from legitimate channels, these products remain widely available through unregulated sources. Since 2020, the number of different e-cigarette devices for sale in the U.S. has tripled to over 9,000, with most being unauthorized products from overseas manufacturers, a predictable outcome.

Peer-reviewed studies demonstrate that banning flavored tobacco products often simply shifts consumer behavior rather than eliminating it, a pattern that repeats with prohibited substances and behaviors throughout history. When flavored products are banned, users adapt by purchasing from out-of-state retailers, illegal sellers, online sources, or by stocking up before bans take effect. This mirrors the familiar pattern seen during alcohol prohibition: when demand persists, prohibition doesn’t eliminate products but merely changes how they’re obtained and who profits from their sale.

The public health implications are grim: Black market vaping products lack quality control standards and often contain harmful additives. The 2019 vaping-related lung injury outbreak was linked primarily to illicit THC vaping products containing vitamin E acetate. This outbreak is a stark reminder that driving products underground can create greater health risks than regulating them properly. In our regulatory repetition complex, we seem doomed to recreate the same conditions that led to thousands of deaths from tainted alcohol during prohibition.

Breaking The Repetition Complex

With Robert F. Kennedy Jr. now overseeing the FDA, we stand at a potentially historical juncture for tobacco harm reduction policy. Kennedy’s vow to overhaul the FDA, combined with the Trump administration’s pledge to protect flavored vaping products, signals a potential shift away from the failed prohibitionist approach that has dominated regulation for years.

The question isn’t simply whether regulators can ban flavored products, the Supreme Court has settled that question, but whether such bans represent wise, proportionate policy that respects the freedom of adult consumers while effectively protecting youth. To break free from our regulatory repetition complex requires acknowledging that sound policy demands balance—not bans.

Just as Freud observed individuals compulsively repeating their traumas, our regulatory system seems trapped in a cycle of prohibition, black markets, and unintended consequences. And just because regulators have power doesn’t mean every exercise of that power serves the public good.